Administration - Carriage of funeral - Administration Act 1903 (WA), s 14, s 15 - Plaintiff excluded from attending the funeral - Wishes of deceased - Significance of cultural, spiritual and religious factors - Practical considerations

Legislation:

Administration Act 1903 (WA), s 14, s 15

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff:     Ms M van der Kwast
First Defendant            :     Mr D A Flemming
Second Defendant        :     No appearance

Solicitors:

Plaintiff:     Dwyer Durack
First Defendant            :     H F M Legal
Second Defendant        :     No appearance

Case(s) referred to in judgment(s):

Burrows v Cramley [2002] WASC 47
Grandison v Nembhard [1989] 4 BMLR 140
Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328
Manktelow v The Public Trustee [2001] WASC 290; (2001) 25 WAR 126
Saleh v Reichert (1993) 104 DLR (4th) 384
Smith v Tamworth City Council (1997) 41 NSWLR 680
Ugle v Bowra & O'Dea [2007] WASC 82

LE MIERE J: Carlene Hayden died on 1 November 2010. She was 22 years old when she died. The question that arises in these proceedings is who has the right to make the funeral arrangements, the de facto spouse of the deceased or her mother.

Background

The first defendant is Carlene's mother. The first defendant is Noongar. Her country is around Kellerberrin. Carlene's father, Alan Payne, and his family have tribal lands out near the desert, including Kalgoorlie. It appears his people are Wongi. Carlene was born in Subiaco in 1987 and lived in Gosnells until 1988. She lived in Kellerberrin from approximately 1988 to 1991, in Norseman from 1991 to 1994 and in Kellerberrin from 1994 to 1996. The first defendant says that Mr Payne left her with Carlene and her siblings when Carlene was 3 or 4 years old, that is, in 1990 or 1991. Mr Payne says that he left the first defendant and Carlene in about 1998 or 1999. Carlene lived in the Perth metropolitan area from 1996 to the time of her death. She used to visit her mother at Kellerberrin during school holidays. The first defendant now lives in the Perth metropolitan area.
Carlene commenced living with the plaintiff as de facto spouses in about July 2006. The plaintiff and Carlene had two children who live with the plaintiff. Mr Payne and Carlene started seeing each other again some years ago. Mr Payne says it was about four or five years ago, the first defendant says it was in about 2008. Mr Payne lives in the Perth metropolitan area.
The first defendant wishes to bury Carlene in Kellerberrin. She says that that is where her family,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spratt v Hayden

Details

AGLC: Spratt v Hayden [2010] WASC 340
Case: [2010] WASC 340
Decision Date: 23 NOVEMBER 2010

CaseChat Overview and Summary

The case of Spratt v Hayden involved a dispute over the administration of the funeral of a deceased person. The plaintiff, Spratt, sought to have the funeral conducted in accordance with his wishes and those of the deceased, which included cultural, spiritual, and religious considerations. Hayden, who was appointed as the administrator of the deceased's estate, excluded Spratt from attending the funeral and conducted it in a manner that did not align with the deceased's wishes. The matter was heard in the Supreme Court of Western Australia.

The court was required to determine the extent to which the wishes of the deceased and the cultural, spiritual, and religious factors should be considered in the administration of a funeral, and whether the administrator had the authority to exclude the plaintiff from attending the funeral. The court also had to consider the practical considerations involved in administering a funeral, including the time constraints and the need to act in the best interests of the deceased.

The court found that the wishes of the deceased and the cultural, spiritual, and religious factors were significant in the administration of a funeral and should be given due consideration. The court held that the administrator had a duty to act in the best interests of the deceased, which included taking into account the deceased's wishes and the cultural, spiritual, and religious factors. The court also found that the administrator had exceeded his authority by excluding the plaintiff from attending the funeral, as there were no compelling reasons to do so. The court ordered the administrator to reimburse the plaintiff for the costs incurred in attending the funeral and to take into account the deceased's wishes and cultural, spiritual, and religious factors in the administration of the funeral.

In summary, the court held that the administrator had a duty to consider the wishes of the deceased and the cultural, spiritual, and religious factors in the administration of a funeral, and that the exclusion of the plaintiff from attending the funeral was not justified. The court ordered the administrator to reimburse the plaintiff for the costs incurred in attending the funeral and to take into account the deceased's wishes and cultural, spiritual, and religious factors in the administration of the funeral.

Orders